Part 7 U.K. Trial by Court Martial

Modifications etc. (not altering text)

C1 Pt. 7 modified (31.10.2009) by The Armed Forces (Court Martial) Rules 2009 (S.I. 2009/2041), art. 1, rule 128(1)

Chapter 3 U.K. Punishments Available to Court Martial

165 Sentencing powers of Court Martial where election for trial by that court instead of CO U.K.

(1) For the purposes of this section, an offence of which a person is convicted or acquitted is “relevant” if—

(a) the charge in respect of the offence is one as regards which the person elected Court Martial trial under section 129 (whether or not the charge was amended after election);

(b) the charge in respect of the offence was—

(i) brought under section 125 in addition to a charge as regards which the person so elected; or

(ii) substituted for a charge as regards which the person so elected, or for a charge within sub-paragraph (i), or for a charge so substituted; or

(c) the person elected Court Martial trial as regards a charge in respect of another offence and conditions prescribed by Court Martial rules are met.

(2) Where—

(a) the Court Martial convicts a person of an offence which is relevant by virtue of subsection (1)(a), and

(b) subsection (4) (multiple relevant offences) does not apply,

the sentence passed in respect of the offence must be such that the commanding officer could have awarded the punishments awarded by that sentence if he had heard the charge summarily and had recorded a finding that the charge had been proved.

(3) In subsection (2) “the commanding officer” means the commanding officer who would have heard the charge if no election under section 129 had been made.

(4) This subsection applies where the court convicts a person of two or more relevant offences the charges in respect of which—

(a) would have been heard summarily together if no election under section 129 had been made; or

(b) are under Court Martial rules to be treated as if they would have been so heard.

(5) Court Martial rules may make provision about the sentencing powers available to the Court Martial—

(a) where subsection (4) applies;

(b) where the court convicts a person of an offence which is relevant by virtue of subsection (1)(b) or (c).

(6) Court Martial rules may make provision—

(a) about the sentencing principles that the Court Martial is to apply in relation to—

(i) the sentencing of an offender for one or more relevant offences; or

(ii) the sentencing of an offender for an offence with which a relevant offence is associated;

(b) restricting the orders that the court may make by virtue of a conviction or acquittal of a relevant offence, including provision—

(i) preventing the court from making an order of a particular kind;

(ii) restricting the provision that may be made by an order of a particular kind;

(c) in relation to any case where a person is convicted of a relevant offence,—

(i) as respects appeals;

(ii) excluding or restricting powers relating to review of sentence.

(7) Rules made by virtue of this section may modify or exclude—

(a) any provision of or made under this Act (including section 255);

(b) any provision of the Court Martial Appeals Act 1968.

Modifications etc. (not altering text)

C2 S. 165(2) excluded (31.10.2009) by The Armed Forces (Court Martial) Rules 2009 (S.I. 2009/2041), art. 1, Sch. 2 para. 29(1)

C3 S. 165(4) excluded (31.10.2009) by The Armed Forces (Court Martial) Rules 2009 (S.I. 2009/2041), art. 1, Sch. 2 para. 31(1)

Commencement Information

I1 S. 165 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I2 S. 165 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4